EXHIBIT 4.17
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement ("Agreement"), dated as of December 19, 2001,
is made by and among Xxxxxxxxxxx XX Acquireco Inc., an Alberta corporation (the
"Purchaser"), Xxxxxxxxxxx International, Inc., a Delaware corporation
("Company"), and those certain holders listed on the signature page(s) hereto
(individually a "Holder" and collectively the "Holders"), who hereby agree as
follows:
1. INTRODUCTION
For purposes of this Agreement, the following terms shall have the meanings
ascribed to them below.
"Agreement" shall mean this Registration Rights
Agreement, as amended, supplemented or
otherwise modified from time to time;
"best lawful efforts" shall mean the efforts that a prudent
business person desirous of achieving a
result would use under similar
circumstances to ensure that such
result is achieved as expeditiously as
possible;
"Common Stock" shall mean the Company's common stock,
par value $1.00 per share;
"Exchange Act" shall mean the United States Securities
Exchange Act of 1934, as amended, or
any successor legislation thereto
(including the rules and regulations
promulgated thereunder);
"Exchange Rights Agreement" shall mean the Exchange Rights
Agreement by and among the Company,
WCL, the Purchaser and the Holders,
dated as of the date hereof;
"Exchangeable Share Provisions" shall mean that certain portion of the
Articles of Incorporation of the
Purchaser setting forth the rights,
privileges, restrictions and conditions
attaching to the Exchangeable Shares;
"Exchangeable Shares" shall mean the exchangeable shares in
the capital stock of the Purchaser
issued to each Holder pursuant to the
Share Purchase Agreement;
"Registrable Securities" shall mean (a) the Shares and (b) any
Common Stock or other securities of the
Company issued or issuable with respect
to any of the Shares by way of stock
dividend or stock split, or in
connection with a combination of
shares,
recapitalization, merger, consolidation
or other reorganization or otherwise.
"Rule 144" shall mean Rule 144 promulgated by the
SEC under the Securities Act, or any
successor to such rule;
"Rule 145" shall mean Rule 145 promulgated by the
SEC under the Securities Act, or any
successor to such rule;
"Rule 158" shall mean Rule 158 promulgated by the
SEC under the Securities Act, or any
successor to such rule;
"Share Purchase Agreement" shall mean the Share Purchase
Agreement, dated December __, 2001,
among the Purchaser, and the Holders;
"SEC" shall mean the United States Securities
and Exchange Commission, or any
successor agency thereto;
"Securities Act" shall mean the United States Securities
Act of 1933, as amended, or any
successor legislation thereto
(including the rules and regulations
promulgated thereunder);
"Shares" means the Common Stock issuable to each
Holder in accordance with the
Exchangeable Share Provisions and the
Exchange Rights Agreement;
"WCL" shall mean Xxxxxxxxxxx Canada Ltd., a
corporation amalgamated under the laws
of the Province of Alberta.
The words "hereof', "herein" and "hereunder" and words of similar import when
used in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement, and section, subsection, schedule and
exhibit references are to this Agreement. Capitalized terms used in this
Agreement but not defined herein shall have the meanings ascribed to them in the
Share Purchase Agreement.
2. SHELF REGISTRATION
(a) The holders owning of record an aggregate of 50% or more of
the Exchangeable Shares may at any time within two years from
the date of this Agreement, request registration under the
Securities Act of all the Registrable Securities (a "Demand
Request"). Within 10 days after receipt of a Demand Request,
the Company shall
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give written notice of the Demand Request to all other Holders
of the Exchangeable Shares. Within 30 days after receipt of a
Demand Request, the Company will file a "shelf" registration
statement (the "Shelf Registration") on Form S-3 (or other
appropriate form) pursuant to Rule 415 under the Securities
Act (or any similar rule that may be adopted under that Act)
with respect to the registration of the original issuance of
the Registrable Securities to the holders of the Exchangeable
Shares. The Company will use its best lawful efforts to cause
the Shelf Registration to be declared effective as promptly as
is practicable after such filing and, subject to subsections
(c) and (d) below, will use its best lawful efforts to keep
the Shelf Registration effective, supplemented and amended to
the extent necessary to assure that it is available for the
original issuance of the Registrable Securities to the holders
of the Exchangeable Shares and that it conforms with the
requirements of this Agreement, the Securities Act, and the
policies, rules and regulations of the SEC, in each case
during the entire period (the "Shelf Registration Period")
beginning on the date such Shelf Registration shall first be
declared effective under the Securities Act (the "Shelf
Effective Date") and ending on the earlier of (i) the second
anniversary of the Shelf Effective Date and (ii) the date on
which all of the Registrable Securities have been issued to
the holders of the Exchangeable Shares.
(b) Each Holder will, within 5 business days after the date of
issuing a Demand Request, or within 5 business days after
receiving notice of a Demand Request, as the case may be,
furnish the Company in writing, if applicable, any of the
information specified in Items 507 and 508 of Regulation S-K
under the Securities Act, or any other information required by
the Securities Act or the Rules of the SEC to be included in
the Shelf Registration and will promptly furnish to the
Company any such information upon the Company's request for
inclusion in any new prospectus or prospectus supplement or
post-effective amendment.
(c) If during the Shelf Registration Period, the Company believes
that an event or events have occurred which, in the good faith
opinion of the Company, require the filing of a new prospectus
or prospectus supplement or post-effective amendment in order
that the prospectus not contain any misstatement of a material
fact or not omit to state a material fact required to be
stated therein or necessary to make the statements therein (in
the light of the circumstances under which they were made) not
misleading (a "Corrective Filing"), the Company shall promptly
so notify the Holders (a "Material Event Notice"), and the
Company shall prepare and file with the SEC and deliver to the
Holders such Corrective Filing, as promptly as practicable but
in any event within ten days after the date a Material Event
Notice is given, except that the Company may delay such filing
for such number of days, not to exceed 90, if the Company
determines that (i) the public disclosure of any of the
information requiring the Corrective Filing is impractical or
would have a material adverse effect on the Company, or (ii)
the filing of such Corrective Filing would have a significant
disruptive effect on any material transaction then pending;
provided that such delay shall not be longer than is
reasonably required, in the Company's sole judgment, to avoid
such material adverse effect or significant disruptive effect.
If any new prospectus or
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prospectus supplement or post-effective amendment is required
in connection with the Shelf Registration other than a
Corrective Filing (any such filing, other than a Corrective
Filing, is herein called a "Routine Filing"), the Company will
so notify the Holders in writing (a "Filing Notice") and shall
prepare and file with the SEC and deliver to the Holders such
Routine Filing as promptly as practicable but in any event
within ten days after the date the Filing Notice is given. The
Holders may exchange Exchangeable Shares for Registrable
Securities under the Shelf Registration during the Shelf
Registration Period, but if the Holders have received a
Material Event Notice or Filing Notice, such exchanges may not
be made under the Shelf Registration from the time such notice
is received in accordance with Section 5(i) below until the
date on which the Corrective Filing or Routine Filing, as the
case may be, has been filed or if the Corrective Filing or
Routine Filing is a post-effective amendment, the date the
post-effective amendment has become effective under the
Securities Act, of which date the Company shall give prompt
notice to the Holders by the same method as the first notice
is given (provided such method is available and functioning).
(d) Notwithstanding anything to the contrary contained in this
Section 2, the Company shall be permitted, on written notice
to the Holders, to suspend the period of exchange of
Exchangeable Shares for Registrable Securities under the Shelf
Registration at any time:
(i) during the period beginning ten days prior to the
estimated date of filing, and ending on the date
twenty days following, the effective date of a
registration statement pertaining to an underwritten
public offering of securities for the account of the
Company; provided, however, that the Company shall
have received written advice from the managing
underwriter or underwriters that issuances of
Registrable Securities under the Shelf Registration
and the subsequent sale thereof could reasonably be
expected to adversely affect such offering;
(ii) during any period in which the Company is in
possession of material non-public information
concerning it or its business and affairs, the public
disclosure of which, in the good faith judgement of
the Company, as certified in a certificate signed by
the President, Chief Executive Officer or General
Counsel of the Company and furnished to the Holders,
would have a material adverse effect on the Company;
or
(iii) during any period if the Company is engaged in any
material acquisition, transaction or disposition
transaction that would, in the good faith judgement
of the Company, as certified in a certificate signed
by the President, Chief Executive Officer or General
Counsel of the Company and furnished to the Holders,
be significantly disrupted by the issuance of
Registrable Securities and the subsequent sale
thereof.
(e) The Company's filing of a report under the Exchange Act that
is incorporated by reference into the prospectus shall be
considered to be a Corrective Filing if such filing eliminates
the necessity of otherwise making a Corrective Filing.
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3. REGISTRATION PROCEDURES
(a) Subject to Section 2, the Company will use its best lawful
efforts to effect the registration of the Registrable
Securities pursuant to this Agreement and in so doing will:
(i) prepare and file with the SEC under the Securities
Act a registration statement with respect to the
Registrable Securities, and use its best lawful
efforts to cause such registration statement to
become effective and to remain effective as provided
herein;
(ii) prepare and file with the SEC such amendments and
supplements, if any, to such registration statement
and the prospectus used in connection therewith as
may be necessary to (i) keep such registration
statement effective during the Shelf Registration
Period and (ii) comply with the provisions of the
Securities Act with respect to the issuance of all
securities covered by such registration statement in
accordance with the "plan of distribution" set forth
in such registration statement;
(iii) furnish to each Holder such number of copies of such
registration statement (including exhibits), each
amendment and supplement thereto, the prospectus
included in such registration statement (including
each preliminary prospectus) as such Holder may
reasonably request in order to facilitate the
issuance of the Registrable Securities;
(iv) notify each Holder promptly (A) when the Company is
informed that such registration statement or any
post-effective amendment to such registration
statement becomes effective; (B) of any request by
the SEC for an amendment or any supplement to such
registration statement or any related prospectus; (C)
of the issuance by the SEC of any stop order
suspending the effectiveness of such registration
statement or of any order preventing or suspending
the use of any related prospectus or the initiation
or threat of any proceeding for that purpose; (D) of
the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction
or the initiation or threat of a proceeding for that
purpose; and (E) at any time when a prospectus
relating thereto is required to be delivered under
the Securities Act, when it becomes aware of the
happening of any event as a result of which the
prospectus included in such registration statement
(as then in effect) contains any untrue statement of
a material fact or omits any fact necessary to make
the statements therein not misleading in light of the
circumstances then existing, and, as promptly as
practicable thereafter (but subject to Sections 2(c)
and 2(d));
(v) if at any time the SEC shall issue any stop order
suspending the effectiveness of such registration
statement, or any securities commission or other
regulatory authority shall issue an order suspending
the qualification or exemption from qualification of
the Registrable Securities under the securities or
blue sky laws of any jurisdiction, the Company
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shall use commercially reasonable efforts to obtain
the withdrawal or lifting of such order at the
earliest possible time;
(vi) upon the occurrence of any event contemplated by
Section 3(a)(iv)(E) above, prepare in sufficient
quantities a supplement or amendment to such
prospectus so that, as thereafter delivered to each
Holder, such prospectus will not contain any untrue
statement of a material fact or omit to state any
fact necessary to make the statements therein not
misleading in light of the circumstances then
existing;
(vii) subject to the execution of confidentiality
agreements in a form reasonably satisfactory to the
Company, make reasonably available for inspection by
any Holder, the Representative Counsel (as
hereinafter defined) and any attorney, accountant or
other agent retained by any such Representative
Counsel, all financial and other records, pertinent
corporate documents and properties of the Company,
and cause the Company's officers, directors and
employees to supply all information reasonably
requested by any such Holder, Representative Counsel,
attorney, accountant or agent in connection with such
registration statement to the extent such information
is reasonably necessary in order for any such party
to fulfill its role with respect to the preparation
and completion of the registration statement; and
(viii) provide the Holders and Representative Counsel a
reasonable opportunity to review and comment on any
filing to be made in connection with any such
registration, other than documents incorporated by
reference in such registration statement.
In the case of each registration, qualification or compliance effected
by the Company pursuant to this Agreement, the Company will keep each Holder
advised in writing as to the initiation of each registration, qualification and
compliance and as to the completion thereof.
(b) Each Holder agrees that:
(i) upon receipt of any notice from the Company of the
happening of any event of the kind described in
Section 3(a)(iv)(E), such Holder will forthwith
discontinue such Holder's exchange of Exchangeable
Shares for Registrable Securities pursuant to the
registration statement covering such Registrable
Securities until such Holder's receipt of the copies
of the supplemented or amended prospectus
contemplated by Section 3(a)(vi); and
(ii) in connection with the preparation and review
pursuant to this Agreement of any registration
statement or prospectus or any amendments or
supplements thereto, the Holders of a majority of the
Registrable Securities will choose one counsel
("Representative Counsel") who shall represent all of
the Holders at their expense and participate in the
registration process on their behalf and will
coordinate requests by Holders for information from
the Company and act as liaison between
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such Holders or their individual counsel, accountants
and agents and the Company.
4. REGISTRATION EXPENSES
Whether or not any registration pursuant to this Agreement shall become
effective, all expenses incident to the Company's performance of or compliance
with this Agreement, including without limitation all registration and filing
fees, National Association of Securities Dealers' fees, fees and expenses of
compliance with U.S. state securities or blue sky laws, printing and engraving
expenses and fees and disbursements of counsel for the Company, the independent
certified public accountants for the Company, underwriters (excluding discounts
and commissions) and other persons retained by the Company (all such expenses
being herein called "Registration Expenses"), will be borne by the Company;
provided, however, that each Holder shall pay (A) any underwriting discounts and
selling commissions applicable to such Registrable Securities sold by such
Holder and (B) such Holder's pro rata share of all fees and disbursements of
counsel for the Holders.
5. MISCELLANEOUS
(a) Termination - This Agreement and all rights, obligations and
restrictions hereunder with respect to any Registrable
Securities will terminate (the "Termination Date") if a Demand
Request has not been received by the Company within two years
from the date of this Agreement. If a Demand Request has been
received by the Company within two years from the date of this
Agreement, then the Termination Date shall be the earliest to
occur of (1) two years from the Shelf Effective Date, or (2)
the date on which all of the Registrable Securities have been
issued to the holders of the Exchangeable Shares.
(b) Waivers - Except as otherwise provided herein, the Company may
not take any action herein prohibited, or omit to perform any
act herein required to be performed by it, unless the Company
has obtained the prior written consent of the Holders of all
Registrable Securities.
(c) Amendments - Except as otherwise provided herein, this
Agreement may be amended only with the written consent of the
Company, the Purchaser and the Holders of all Registrable
Securities.
(d) Subsequent Holders of Registrable Securities - This Agreement
shall not be assignable by the Holders; provided, however,
this Agreement shall not prohibit the Holders from assigning
their respective rights under this Agreement to transferees of
Exchangeable Shares who receive such Exchangeable Shares by
gift, by will or the laws of descent and distribution.
(e) Severability - Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be
effective and valid under applicable law, but if any provision
of this Agreement is held to be prohibited by or invalid under
applicable law, such provision will be ineffective only to the
extent of such prohibition or invalidity, without invalidating
the remainder of this Agreement.
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(f) Counterparts - This Agreement may be executed simultaneously
in two or more counterparts, any one of which need not contain
the signatures of more than one party, but all counterparts
taken together will constitute one and the same Agreement.
(g) Descriptive Headings - The descriptive headings of this
Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
(h) Governing Law - All questions concerning the construction,
validity and interpretation of this Agreement and the exhibits
and schedules hereto will be governed by the internal law, and
not the law of conflicts, of the State of Texas.
(i) Notices - Unless otherwise provided herein, all notices,
demands or other communications to be given or delivered under
or by reason of the provisions of this Agreement will be in
writing and will be deemed to have been received (1) on the
date delivered personally to the recipient, (2) on the fifth
day after being mailed by certified or registered mail, return
receipt requested and postage prepaid to the recipient, or (3)
on the date sent by facsimile or e-mail to the recipient
provided that the sender receives notice or confirmation of
error-free delivery of such fax or does not receive prompt
notice of delivery failure of such e-mail. Such notices,
demands and other communications will be sent to each of the
Holders at their respective addresses, facsimile numbers and
e-mail addresses set forth on the signature pages to this
Agreement or as provided by the Holders to the Company from
time to time, and to the Company at the address, facsimile
number and e-mail address indicated below:
If to the Company or Purchaser:
c/o Weatherford International, Inc.
000 Xxxx Xxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
E-mail: xxxx.xxxxxx@xxxxxxxxxxx.xxx
Attention: Xxxx X. Xxxxxx, Vice President-Law
with a copy to:
Xxxxxxx & Xxxxx, L.L.P
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
E-mail: xxxxxxx@xxxxx.xxx
Attention: Xxxxxx X. Xxxxxx
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
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(j) Benefit of Agreement - No person not a party to this Agreement
shall have rights under this Agreement as third party
beneficiary or otherwise.
(k) Entire Agreement - This Agreement is the entire agreement
between the Company, on the one hand, and the Holders, on the
other hand, with respect to registration by the Company of
Registrable Securities.
(l) Aircraft Carrier Release - The parties recognize that
fundamental changes in the SEC's registration procedures may
be made by adoption of the SEC's Aircraft Carrier Release in
its current or any revised form. Should that occur, or should
such changes otherwise occur, the parties will amend this
Agreement in a reasonable manner so as to approximate as
closely as possible the same access of the Holders to the
public markets for their Registrable Securities without
materially increasing any burden to the Company of providing
that access.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date first above written.
XXXXXXXXXXX XX ACQUIRECO INC.
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name:
-------------------------------
Title:
------------------------------
XXXXXXXXXXX INTERNATIONAL, INC.
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Address: HOLDERS:
c/o Xxx Xxxxx /s/ A. Xxxx Xxxxx
Xxxxxx & Co. Limited ---------------------------------------
0000 Xxxxx Xxxxxxxx Xxxxx X. Xxxx Xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: xxxxxx@xxxxxxxx.xxx
c/o Xxx Xxxxx /s/ Xxxxx X. Xxxxx
Xxxxxx & Co. Limited ---------------------------------------
0000 Xxxxx Xxxxxxxx Xxxxx Xxxxx X. Xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: xxxxxx@xxxxxxxx.xxx
c/o Xxx Xxxxx /s/ N. Xxxxx X. Xxxxx
Xxxxxx & Co. Limited ---------------------------------------
2500 First Canadian Place N. Xxxxx X. Xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: xxxxxx@xxxxxxxx.xxx
c/o Xxx Xxxxx /s/ Xxxxxx X. Xxxxx
Xxxxxx & Co. Limited ---------------------------------------
0000 Xxxxx Xxxxxxxx Xxxxx Xxxxxx X. Xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: xxxxxx@xxxxxxxx.xxx
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